Monday, November 19, 2007

Copyright Reform Part 1

If you hang out among copyright lawyers, you’ll notice widespread agreement that the current copyright statute, enacted more than 30 years ago in 1976 and amended piecemeal in the years since, isn’t working very well. (That doesn’t mean that copyright lawyers agree on which parts need fixed.)1 The statute treats dissemination of works over digital networks especially poorly. That’s unsurprising; extensive use of digital networks post-dates the statute’s enactment. Yet, you’ll also notice widespread discomfort with the prospect of asking Congress to undertake the project of wholesale copyright revision.

That discomfort is only partially due to the fact that copyright revision is lengthy and expensive. The number of interests affected by copyright is huge, and the complaints those interests have with the current regime are diverse. Overhauling the copyright statute took more than 20 years the last time Congress tried it, and there’s no reason to think it could happen more quickly today.

More importantly, the large role played in copyright lawmaking by lobbyists for important copyright actors has in the past produced statutes that are neither models of clarity nor well-designed to weather the pressures of technological progress. It is difficult to look at section 114 of the current copyright statute,2 for example, and come up with anything nice to say about it.

Moreover, history teaches that in the course of any major copyright revision, new copyright-affected players will pop up and demand that the law be reshaped to accommodate their needs. In the revision process that culminated in the enactment of the 1909 copyright act, the manufacturers of phonographs and phonograph records nearly derailed the entire effort until they were satisfied with the statute’s treatment of them. Multiple attempts to modernize the copyright law during the 1920s and 1930s foundered because new players ASCAP and radio broadcasters could not agree on anything. In the revision process that led to the 1976 Act, broadcast television and then cable television showed up and demanded special treatment; copyright revision ground to a halt until they got it. The prospect of the upstart new copyright interest may be especially scary today because there are tens of millions of ordinary people whose use of YouTube and peer-to-peer file sharing networks means they have direct personal interests in the copyright law. Nobody has succeeded in mobilizing them into a significant political force, but the majority of them are over 18, and many of them vote. It’s entirely possible that over the course of a multi-year, highly publicized copyright reform effort, the interests of ordinary voters could end up playing a more than a nominal role. One can imagine circumstances in which a new awareness on the part of Congress that voters care about copyright could move the law pretty far from where current players would like to see it go.

Thus, it is unsurprising that the perceived need for copyright reform combined with widespread reluctance to involve Congress in the effort, at least at the outset, has generated a host of extra-legislative copyright reform efforts. Some of these efforts have involved taking adventurous positions in litigation, in the hope of persuading courts that the law already means what one wishes it did.3 Some of these efforts have involved using private agreements to contract around inconvenient statutory defaults.4 Some have involved committing the United States in trade negotiations to take particular positions on copyright enforcement, and then seeking to import those commitments as a gloss on the meaning of current law.5

A different approach seeks to generate a menu of principles to guide later congressional reform. A group may draft copyright principles as part of an advocacy effort6 or as an effort to steer legislative drafting in particular directions or away from others.7

The copyright bar has grown increasingly polarized over the past 15 years.8 Precisely because of that polarization, a project designed to gather a group of copyright experts and charge them with generating a list of copyright principles has features that make it appealing across the copyright political spectrum. First, because the effort involves articulating principles of copyright law, the power and money imbalance between different interests looms smaller, blunting the influence of what Larry Lessig has called “all the money in the world.”9 Second, even those with well-developed lobbying muscles have reasons to prefer conversing with other copyright specialists rather than a more general crowd. There’s probably some truth to the charge that we who practice, teach, or write about copyright law for a living have all drunk the copyright Kool-Aid®.10 Copyright lawyers, as a group, are less likely to challenge the received copyright wisdom, and less likely to propose that copyright-affected players adopt radically new business models. Finally, casting a project as a pursuit of copyright principles allows participants to try to ferret out the issues on which they agree and paper over or vague out the issues on which agreement proves impossible.

One sign that copyright reform is on the horizon is that copyright principles projects are springing up, trying to figure out a way to generate something that will prove useful. I don’t mean to impugn such projects – indeed, as I’ll explain in the next post, I’ve been working with one myself.

Editor: Part 2, in which Professor Litman attempts to "articulate principles on which copyright experts across the copyright political spectrum might be able to agree," will publish tomorrow.